SF Chron Has Dismal Story on Prop 34

Bob Egelko has this story in the San Francisco Chronicle on California's death penalty repeal initiative. What's wrong with the story? The hardest part of writing this post was deciding where to begin.

Let's start with the description of the federal lethal injection litigation. "Since the injunction [in 2006], state officials have appealed every order by federal and state judges...." The implication is that the state has been fighting hard to carry out the death penalty, and inherent delays have prevented it. There is just one problem.

The statement that the state has appealed every order of federal judges is a patent falsehood.

Judge Fogel's "conditional denial" of a preliminary injunction was appealed by Morales, not the state. When it ripened into a grant, the state did not appeal. In 2010, after the Supreme Court had decided Baze v. Rees and after the CDCR had promulgated the protocol as a regulation under the Administrative Procedure Act, murderer Albert Greenwood Brown intervened and got an injunction that permitted the state to proceed only by modifying its protocol to a single drug. That order was appealed by Brown, not the state. On remand from the Ninth Circuit, Judge Fogel issued an unconditional stay, and the state did not appeal. On December 10, 2010, Judge Fogel denied the state's motion to dismiss, and the state did not appeal. On January 19, 2011, murderers Mitchell Sims and Stevie Fields intervened and got a stay, and the state did not appeal. Three weeks later, the Ninth Circuit rejected a challenge to Arizona's substantially equal three-drug protocol, and the state did nothing.

How many orders by federal judges has the state actually appealed in this matter? Zero. I have uploaded the docket. Read it for yourself. There are two notices of appeal, both by inmates. Although this is not the most important point in the story, it is the one with the clearest and most objective true and false. The statement is just flat false, and it is very easy to check.

As for the state litigation over the Administrative Procedure
Act, the state did appeal both orders of the superior court (with the
second appeal now pending), but the implication that the state has
vigorously fought the litigation is misleading. The state did not seek
Supreme Court review in the first case, holding execution protocols
subject to the Administrative Procedure Act. That state did not oppose
the wording of the superior court's injunction in the second case. If
taken literally, that injunction would preclude invocation of any of the
exceptions to the APA, with no basis whatever in law for such a
preclusion. The state then invoked this injunction in other court
proceedings (by CJLF and the LA DA) attempting to force a resumption of
executions. If the Brown Administration has not exactly "taken a dive"
in this litigation, it has at least taken unnecessary punches and failed
to punch back with anything like the vigor needed. You would never
know that from reading the Chronicle story but would instead get the
opposite impression.

More subjective is the discussion of the No
on 34 campaign's position that the people now claiming that the system
is dysfunctional are the ones who made it so, specifically naming the
ACLU. "'The system is broken because they broke it,' Anne Marie
Schubert, a Sacramento County deputy district attorney, recently told
The Chronicle's editorial board."

The story says, "Those arguments rest on shaky ground - the ACLU doesn't represent death
penalty defendants, the 'endless delays' are mostly built into the
system or attributable to court rulings and the state's struggles to
comply with them...."

The argument that death penalty opponents
are largely responsible for the delays is not at all shaky. While it
is true that the ACLU no longer takes on representation directly -- our
taxpayer dollars now needlessly fund representation on multiple habeas
petitions in cases with no claim of innocence -- that organization has
been very much involved in the campaign of obstruction over the years.
For example, in 2006 when Senator Morrow introduced a bill to reform
state habeas procedures (which would have saved money in addition to
reducing delays), the ACLU opposed it. The bill was killed in
committee, as all the bills that would have reduced delay and expense
have been killed.

More broadly, it is beyond reasonable dispute
that the capital defense bar generally has been engaged in a campaign of
obstruction. On August 30, in its unanimous opinion in In re Reno, the
California Supreme Court confirmed what everyone involved has long
known. The capital defense bar is regularly engaged in filing
phonebook-sized briefs full of claims that are obviously meritless. See
prior post.
The blame for this is shared by the Legislature and the Supreme Court
itself for putting up with it until now, but to absolve the defense bar
is to blind oneself to reality. And of course the anti-death-penalty
bar is very much behind Proposition 34. The head of the ACLU's
anti-death-penalty efforts is the campaign manager.

Far from "shaky," the argument is sound.

How
about the execution protocol problem? Could that be resolved with a
single-drug protocol and executions resumed in short order? The answer
is an unambiguous "no" if you believe the article. "But nothing will
happen quickly - new execution procedures would require
another round of public hearings, then approval by state and
federal judges." But the California Penal Code expressly authorizes
adoption of a regulation on a temporary basis to meet CDCR's
"operational needs," and executions could be resumed while CDCR goes
about the long permanent regulation process. Anyone who has followed
the litigation knows that, but the article says matter-of-factly that it can't be done quickly. That is, at best, reporting one side's position as fact without mentioning the other side's.

"In fact, according to the available studies - conducted by independent
authors, and cited by Prop. 34's supporters - even a modest streamlining
of California's death penalty process will take time and money."

Oh, it's a fact that
streamlining will cost money rather than save money? Apparently
"independent authors" is intended to refer to Alarcon and Mitchell, but
"independent" does not mean unbiased. As we are showing in our posts on
A&M's articles, and as has been pointed out throughout this debate,
these articles skew every debatable inference in favor of racking up a
large bill for what we have already spent and what reform would require.

And
what about John Burton's stacked, deeply divided commission? "More
broadly, a state commission headed by former Attorney General John Van
de Kamp and including prosecutors and defense lawyers, said in 2008 that
California could reduce its Death Row waiting period to the national
average, then 12 years, at a cost of $95 million a year." No mention of
the fact that the commission was deeply divided. No mention of the
fact that the commission chose one of the most strident
anti-death-penalty partisans in the state as its director, and the
report is largely his work. No mention of the fact that all but one of
the prosecutors and victim advocates on the commission refused to join
that report. No mention of the fact that the report was so badly biased
even Jerry Brown wouldn't join it. Nope, reading the article one would
think that this report was the consensus result of a fair process, the
exact opposite of the truth.

Opponents of the initiative point
out that other states, notably Virginia, get their cases done in far
less time than California. To attack this position, the article says, "As
Alarcon points out, however, Virginia, Florida and Texas, three of the
nation's swiftest-executing states, are also among the leaders in cases
of Death Row inmates cleared by DNA evidence while awaiting execution."

But that is not true. Texas is not all that swift and is not a state we cite. As for Virginia, take a look at the DPIC's database of "innocence" cases. There is a grand total of one case from Virginia, even with DPIC's notoriously loose standards for "innocence." The "leader" statement, as applied to the state that is our primary example, is false.

And finally, the article ends with the ACLU statement.

"You
can have a fast death penalty system but not one that's also cheap and
high quality," she said. "You have to spend a lot of money, and if it's
fast, you (still) lose out on justice. You're going to execute innocent
people."

Baloney. Most of the delay and much of the cost of the
present system is spent litigating issues that have nothing whatever to
do with whether we have the right guy. We could keep every bit of the
present review of such issues, which only come up in a small fraction of
cases, and eliminate large amounts of the delay and expense.